Tait v. State, 30164

• Decision Date: 13 March 1963
• Docket Number: No. 30164,30164
• Citation: 188 N.E.2d 537,244 Ind. 35
• Parties: Ernest TAIT, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 537

188 N.E.2d 537

244 Ind. 35

Ernest TAIT, Appellant, v. STATE of Indiana, Appellee.

No. 30164.

Supreme Court of Indiana.

March 13, 1963.

William C. Erbecker, Indinaapolis, for appellant.

Edwin K. Steers, Atty. Gen., Carl E. Van Dorn, Deputy Atty. Gen., for appellee.

MYERS, Judge.

Appellant was charged by amended affidavit with Burglary of Safe and Burglary in the Second Degree. He was tried by a jury and found guilty of the crime of Entering to Commit a Felony and was sentenced from one to ten years in the Indiana State Prison, pursuant to the provisions to § 10-704, Burns' Ind.Stat., 1956 Replacement.

The assignment of errors states as the only ground for reversal the overruling of appellant's motion for new trial. This motion contains twenty-nine specifications of error. In the Argument section of his brief, appellant has divided his argument into eighteen propositions embracing these specifications. The first is that the verdict of the jury is not sustained by sufficient evidence. In determining this, we consider only that evidence most favorable to the State, together with all reasonable and logical inferences that may be drawn therefrom. Music v. State (1959), 240 Ind. 54, 161 N.E.2d 615; Myles v. State (1955), 234 Ind. 129, 124 N.E.2d 205.

The record reveals that on December 21, 1958, a Coca-Cola plant was located upon the east side of Indiana Highway No. 43, just north of the City of Crawfordsville. The building was about one hundred yards off the highway and faced west. There was a signal alarm system in the headquarters of the Crawfordsville Police Department which was directly connected with the plant. It operated in such a fashion that any noise made in the plant could be heard at Police Headquarters.

About 3:16 a. m. on December 21, 1958, a police lieutenant on duty at headquarters heard a noise over this signal system, which he said sounded like a drill being operated inside the office of the Coca-Cola plant. He testified:

'It was a whining whirring sound such as a motor on a drill would make. It stopped and started and that went on several times.'

Police officers were immediately dispatched to the plant. Altogether there were seven policemen who arrived at the plant grounds, including two state troopers. It took them between eight and ten minutes to get there. They parked their squad cars in different positions, with headlights on so as to shine against the building. Then they surrounded it on foot. They discovered in the rear of the building, on the east side, a wooden overhead folding door which had been pried open and was raised from the floor about twenty-four inches.

The buzzing and drilling sound continued for a minute or two after the police arrived. When the building had been surrounded, officers yelled for any one inside to come out. There was a sound within the building as of breaking bottles. Then a screen dropped out of a window on the north side, which was eight or ten feet from the ground. Appellant was seen to come through the window, feet first, and drop to the ground. He started to run to the front of the building and tried to hide behind some bushes, but finally surrendered to one of the state troopers who appeared immediately in front of him with a shotgun. He was searched, handcuffed and held outside until other officers searched the premises to see if any one else was there. They found a case of broken, empty bottles inside, but no other person in the building. Appellant was then taken inside, due to the cold, as he was wearing no coat. As he came out the window, he was seen wearing a type of stocking cap which fell off after he jumped to the ground. This was picked up by the police. When apprehended, he told the officer his name, and that he thought he had been in a church.

Investigation of the office inside the building revealed a large 700-pound safe, with the outside doors ripped and punched open. Within the safe there was a keyster, or second safe, which had not been opened. An electric drill was sticking out of the keyster, and there was evidence that the drill had been used in several other places. A pry bar was lying in front of the safe and nearby was a bag which contained a flashlight, a screw driver, Allen wrenches, a half-inch drill, a pair of pliers, and three other drills. An excessive amount of water was on the floor. A broken vial was attached to the rear of the safe door. There was testimony that such a vial could contain tear gas which would break in the event the safe was punched and that water could be sprayed to minimize the effects of this tear gas. The manager of the plant, who arrived on the scene shortly afterward, stated there was a blue haze in the office which was apparently caused by tear gas.

Upon examination of the safe, the manager discovered that the records kept in the inner part were gone. He said these consisted of truck titles, canceled checks and notes, some stamps, a railroad ticket, some loose change and about $150 in cash received from vending machines. Debris and waste paper were scattered about the floor and a wastebasket was missing. None of these articles were found on the premises or on the person of appellant.

A further examination revealed that the overhead door had been jimmied open, but the marks on the casing did not match those made by the pry bar found at the scene. An inside door to the office also showed evidence of being forced open by a jimmy. There was a back office in the northeast corner where there was a sliding window which was open. A window screen had been forced out of it and it appeared to have been opened from the inside. A navy peacoat was also found in the building.

At the time, appellant was wearing only a shirt, pants and shoes. There was testimony by the police that it would have taken at least an hour before they arrived to have put the safe in the condition in which it was found. One officer stated that, in his opinion, it would have been physically impossible for one man to have committed this burglary, and that the stolen articles were removed by an accomplice. Others testified that talking was heard inside the building just after they arrived, and that an automobile was observed to have driven up and stopped in front of the plant, and then to have taken off at high speed, headed north on Highway, No. 231, where it turned left at an intersection and disappeared within a few minutes after their arrival. The cap and jacket were taken to the State Police Laboratory for testing. After appellant had remained in jail for twenty-four hours, his pants were likewise sent to the laboratory. A report came back that minute particles of fire clay, similar to that coming from the safe, were found on the cap and peacoat.

Appellant took the witness stand in his own defense. In substance, he testified that in December, 1958, he lived in Indianaplis, where he owned and operated a Carburetor Service Shop. On December 20, 1958, he closed his shop around 6:00 p. m., went home, cleaned up and changed his clothes. He spent some time in a tavern, and then, around 10:00 p. m., he went to the apartment of a man named John Martin Young. Young was not there, but another man whom he knew, named Mitchell Stotts, was there and they drank and talked for a while. Around 11;15 p. m., Young, accompanied by two men he did not know, came into the apartment. One of the men was carrying a wastebasket, which he dumped on the floor. It contained papers and assorted office materials. They had approximately $250 cash, which they proceeded to divide among themselves. Their conversation was about a burglary in Crawfordsville, how they had run into tear gas, and how they thought they should have gotten more money. Then they left the apartment. Appellant departed about 11:30 p. m., after talking with Young a few minutes.

He continued his testimony by saying that he then visited a tavern, where he ran into an old friend and they had a conversation. At 12:25 a. m., December 21st, he proceeded to the house of his girl friend. He found her asleep, so left her a note, together with a bottle of vermouth. He then went to his home and sought something to eat. There was nothing in the icebox that he wanted so he changed into his working clothes, got into his car and drove to an eating place called the Chicken Shack, arriving there about 1:30 a. m. He remained there about half an hour. Just as he started to leave, Young drove up, blew his horn and asked appellant to accompany him on a ride to Crawfordsville, so appellant parked his car and joined Young in his automobile. Young stated that he had left an electric drill at the Coca-Cola plant and he wanted to retrieve it. They drove to Crawfordsville and stopped near the plant about 3:00 a. m. Young went inside the plant. Appellant waited fifteen or twenty minutes, and when Young did not come out, he got out of the automobile and proceeded to go through a partly-opened door into the plant. It was then that the police arrived.

Appellant categorically denied that he had anything to do with the burglary or the opening of the safe. He also denied that the cap or peacoat belonged to him. He did admit having been arrested and convicted of several felonies, among them second-degree burglary, for which he had severed time in prison.

Stotts appeared as a witness for appellant, but did not corroborate appellant's story. He claimed that appellant came to Stotts' apartment on the night of December 20, 1958, around 10:30 or 11:00 o'clock, and had a few drinks while they talked. Some men came to the door and talked to appellant, but Stotts did not hear their conversation. He said he did not know that Young was one of the men, and flatly denied that a wastebasket was brought into the room and dumped on the floor. He said appellant told him that the men wanted him to go somewhere with them. Appellant then side he would see Stotts later and departed.

Appellant strenuously argues that ...